Drinking from the Same Cup: Federal Reserved Water Rights and National Parks in the Eastern United States

• Citation: Vol. 29 No. 4
• Publication year: 2013

Drinking from the Same Cup: Federal Reserved Water Rights and National Parks in the Eastern United States

Ryan Rowberry

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DRINKING FROM THE SAME CUP: FEDERAL RESERVED WATER RIGHTS AND NATIONAL PARKS IN THE EASTERN UNITED STATES

Ryan Rowberry^*

Introduction

United States National Parks are widely considered priceless national treasures deserving vigilant protection and preservation.¹ Indeed, the act creating the National Park Service in 1916 mandated that park lands be managed and preserved "by such means as will leave them unimpaired for the enjoyment of future generations."² Thus far Congress has created fifty-eight national parks located across the United States and its territories, covering over fifty-two million acres of land that include a staggering array of ecosystems.³ The most recent national park was created just earlier this year (January 10, 2013) when the nearly 27,000-acre site of Pinnacles National Monument in California—known for its fields of volcanic monoliths and its habitat for endangered California condors—was elevated to national park status.⁴

A powerful, but underused, tool that the federal government has to protect national parks is the federal reserved water right, which

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ensures that when the federal government designates land for a particular use (e.g., a national park), it also implicitly reserves enough water to satisfy the primary purposes for which that park was created.⁵ To date, the federal government has only claimed federal reserved water rights for national parks in arid western states like Utah or Montana that follow a prior appropriation water regime (i.e., first-in-time, first-in-right).⁶ However, a confluence of factors—climate change; population growth; increased agricultural, industrial, and municipal water usage among them—have resulted in droughts that are severely affecting national parks in eastern states, such as South Carolina and Alabama.⁷ But unlike western states that typically follow a prior appropriation water regime, eastern states generally adhere to a riparian water law regime, which presumes that sufficient water is available for all uses allowing all landowners abutting a water resource the "reasonable use" of that water.⁸ In times of water scarcity, therefore, riparian regimes are ill-suited to protecting water quantity in national parks.

This article argues that because riparian regimes lack the robust regulatory mechanisms and administrative oversight to efficiently protect water resources for national parks in the eastern United States, the National Parks Service (NPS) should claim federal reserved water rights for applicable national parks in the East and negotiate settlements to preserve sufficient water for at-risk national parks in these states. This article is divided into six sections. Part I examines the definition, origins and development of federal reserved

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water rights.⁹ Part II discusses the applicability and scope of federal reserved water rights to national parks and other federal public lands.¹⁰ Part III places federal reserved water rights within the wider context of the differing water regulation management regimes that are used in various states: prior appropriation, riparian, and regulated riparian.¹¹ Next, Part IV analyzes the inadequacies of riparian and regulated riparian regimes to protect national parks, specifically highlighting the perilous condition of Congaree National Park in South Carolina.¹² Part V then assesses previous efforts to claim federal reserved water rights in the East, both of which ended in federal-state settlement agreements.¹³ Finally, Part VI dismisses the notion that federal reserved water rights are inapplicable in riparian regimes and suggests that federal-state negotiated settlements are the most cooperative and efficient way to preserve water quantity for national parks in the eastern United States.¹⁴

I. Federal Reserved Water Rights

A. Definition

When the U.S. government removes land from the public domain for a particular use (e.g., national parks, Indian reservations, wild and scenic rivers), "it also implicitly reserves sufficient water to satisfy the purposes for which the reservation was created."¹⁵ This is known as the doctrine of federal reserved water rights and is one of the primary ways that the U.S. government asserts water rights for its lands, particularly in the West.¹⁶ In 1976, the U.S. Supreme Court upheld an injunction against groundwater pumping at Devil's Hole,

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Death Valley National Monument, by an adjacent rancher that would have jeopardized one of the primary purposes of the national monument—preservation of the desert pupfish—and set out what is still the leading formulation of the reserved rights doctrine:

This court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.¹⁷

B. Origins

The doctrine of federal reserved water rights traces its origins to the U.S. Supreme Court's decision in Winters v. United States.¹⁸ Winters involved a water rights conflict between the Fort Belknap Indian Reservation in Montana and adjacent non-Indian farmers.¹⁹ Both parties claimed riparian rights to the water—the United States "for an implied reservation of a natural flow riparian right to the water flowing across an Indian reservation;" the farmers for riparian rights "of the reasonable use variety"—as Montana, at that time followed a riparian water management regime.²⁰ The Court held, however, that the creation of the Indian reservation by the federal

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government necessarily implied that water was reserved for the Indian's use, in an amount sufficient to achieve the primary purpose of the Indian reservation: to transform the Indians into a more civilized and concentrated agrarian society.²¹ This holding was a significant deviation from the established convention that water law was purely a state matter and for the next four decades, "the Winters doctrine was thought to apply only to Indian Country."²²

C. Development

Then in 1952, Congress passed the McCarran Amendment,²³ which required the federal government to waive its sovereign immunity in cases involving the general adjudication of water rights.²⁴ Before the McCarran Amendment, "the federal government had reserved the right not to be included in general basin adjudications conducted under state law."²⁵ But to achieve an "equitable and orderly allocation [of water] in times of shortage,"²⁶ Congress decided to remedy this exemption, with the result that the McCarran Amendment effectively transferred "the adjudication of rights to the use of water of a river system or other source" back to the state court system.²⁷ The U.S. Supreme Court stated that the "immediate effect of the Amendment is to give consent to jurisdiction in the state courts concurrent with jurisdiction in the federal courts over controversies involving federal rights to the use of water."²⁸ Thus, after the McCarran Amendment, any federal agency

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claiming a federal reserved water right was required to participate in the state's adjudication process.²⁹

Following the passage of the McCarran Amendment, the U.S. Supreme Court expanded the Winters Doctrine beyond Indian reservations in Arizona v. California.³⁰ In Arizona, the Court held that the Winters Doctrine applied to all federally reserved public lands, including National Forests, National Recreation Areas, and National Wildlife Refuges.³¹ Although Arizona significantly expanded the scope of federal reserved water rights, subsequent cases curtailed this expansion in two significant ways. First, in 1976, in Cappaert v. United States, the Court ruled that quantification of a federal reserved water right was limited to the minimum amount necessary "to fulfill the purpose of the [land] reservation, no more."³² Then in 1978, the Court further restricted the doctrine in United States v. New Mexico by limiting federal reserved water rights to the "primary purpose" of the reservation.³³ In New Mexico, the Court distinguished between "primary" and "secondary" purposes of a designated reservation, and held that federal reserved water rights only existed for the primary purpose.³⁴ Water for secondary purposes had to be obtained through the state water rights system.³⁵ At present, the quantification of federal reserved water rights is guided by these two principles: federal reserved water rights only include the minimum amount necessary to fulfill the specific primary purpose for

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which the federal land was reserved as described in the authorizing legislation.

In addition, there are a few other unique characteristics to federal reserved water rights that further define the contours of the right.³⁶ First, federal reserved rights are distinct from state water rights and therefore need not comply with a state's procedural requirements.³⁷ For example, federal reserved water rights are not subject to diversion and "beneficial use"³⁸ requirements and cannot be lost by non-use, as they would otherwise be under many prior appropriation state law systems.³⁹ Under the Winters Doctrine, federal water rights are effectively superimposed on top of the state systems of water allocation.⁴⁰ Second, federal reserved water rights are...